Somarajan vs State Of Kerala
2021 Latest Caselaw 21768 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
 TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
                   CRL.REV.PET NO. 668 OF 2011
     AGAINST THE ORDER/JUDGMENT CRL.A.NO.518/2009 DATED
 31.01.2011 ON THE FILES OF THE ADDITIONAL SESSIONS COURT,
               FAST TRACK COURT (ADHOC), MAVELIKARA
    SC 582/2007 OF ASSISTANT SESSIONS JUDGE, CHENGANNUR
REVISION PETITIONER/APPELLANT IN CRA 518/09/ACCUSED IN SC
582/07:

            SOMARAJAN, S/O CHELLAPPAN
            AGED 50 YEARS,VETTETHETHU THEKKETHIL, KUTTAMPEROOR
            MURI,MANNAR VILLAGE, CHENGANNUR TALUK,ALAPPUZHA
            TALUK

            BY ADV SRI.AJITH MURALI



RESPONDENT/RESPONDENT IN CRA 518/09/COMPLAINANT IN SC
582/07:

            STATE OF KERALA, REPRESENTED BY
            PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM.

            BY PP SRI. SANAL   P. RAJ


     THIS    CRIMINAL   REVISION   PETITION   HAVING   BEEN   FINALLY
HEARD ON 02.11.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Crl.R.P.No.668/2011

                                  -:2:-



                                ORDER

Dated this the 2nd day of November, 2021

This criminal revision petition has been directed against the

judgment in Crl.A.No.518/2009 dated 31.01.2011 on the files of

the Additional Sessions Court, Fast Track Court (Adhoc),

Mavelikara (for short "the appellate court") confirming the

judgment in S.C.No.582/2007 dated 7.11.2009 on the files of the

Assistant Sessions Judge, Chengannur (for short "the trial

court").

2. The accused is the revision petitioner. The accused

faced trial for the offence punishable under Section 8(1)(2) of the

Abkari Act.

3. The case of the prosecution in short is that on

22.6.2004 at about 11.45 am, the accused transported 1 litre of

arrack through Koickal Mukku Ennakkadu public road in

contravention of the Abkari Act and thereby committed the

offence.

4. On receipt of summons, the accused appeared at the Crl.R.P.No.668/2011

trial court. After hearing both sides, charge was framed under

Section 8 (1) (2) of the Abkari Act. The charge was read over

and explained to the accused who pleaded not guilty. The

prosecution examined PW1 to PW6 and marked Exts.P1 to P8.

MO1 was identified. On the side of the defence, DW1 was

examined. Considering the evidence on record, the trial court

found the accused guilty under Section 8(1)(2) of the Abkari Act

and convicted him for the said offence. The accused was

sentenced to undergo rigorous imprisonment for 4 months and to

pay a fine of `1,00,000/-(Rupees one lakh), in default to suffer

simple imprisonment for 3 months. The appellate court in appeal

confirmed the conviction. The sentence was altered to simple

imprisonment for 3 months and to pay a fine of `1,00,000/-

(Rupees one lakh), in default to suffer simple imprisonment for 3

months. The conviction and sentence passed by both the courts

below are under challenge in this revision petition.

5. I have heard the learned counsel for the revision

petitioner as well as the learned Public Prosecutor.

6. The learned counsel appearing for the revision Crl.R.P.No.668/2011

petitioner assailed the conviction and sentence passed by both

the courts below on two grounds.

(1) The forwarding note is not produced. (2) The mahazar does

not contain sample seal.

7. The main contention canvassed by the learned counsel

for the revision petitioner is regarding the non production of the

forwarding note. The learned counsel submitted that mere

production of the laboratory report that the sample tested was

contraband substance is not sufficient unless and until the

forwarding note also is produced. This Court in Gireesh @

Manoj v. State of Kerala[2019 KHC 655] has held that in the

absence of the forwarding note marked in evidence, it cannot be

found that the prosecution has proved beyond reasonable doubt

that the very same sample taken at the spot of occurrence had

reached the chemical examiner for analysis in a tamper proof

condition. The forwarding note is the link evidence to show that it

was the same sample which was drawn from the contraband

seized from the accused had eventually reached the chemical

analysis laboratory by change of hands in a tamper proof Crl.R.P.No.668/2011

condition. Hence, I am of the view that non production of the

forwarding note is fatal to the prosecution.

8. The next point canvassed by the learned counsel is

regarding the absence of sample seal in the mahazar. This Court

in K.Bhaskaran v. State of Kerala (2020(5) KLT Online 1057)

has held that the specimen seal shall be provided in the seizure

mahazar and also in the forwarding note, so as to enable the

court to satisfy the genuineness of the sample produced in the

court. It was also observed in the said judgment that the nature

of the seal used shall be mentioned in the seizure mahazar. A

perusal of Ext.P1 mahazar would show that it does not contain

the sample seal or the description of the seal used.

9. The aforesaid vital aspects were not taken into

consideration by the courts below while appreciating the

prosecution case. For the reasons stated above, I am of the view

that the conviction and sentence passed by the courts below

suffer from illegality and it cannot be sustained.

In the result, the criminal revision petition stands allowed.

The conviction and sentence passed by the courts below vide Crl.R.P.No.668/2011

impugned judgments are set aside. The revision petitioner is

found not guilty of the offences charged against him and

accordingly he is acquitted. His bail bond is cancelled.

Sd/-

                                       DR. KAUSER EDAPPAGATH
                                                JUDGE
kp                      True copy
                           P.A. To Judge